Judges! Stop Deferring to Class-Action Lawyers

Brian Wolfman*

2 U. Mich. J.L. Reform A80

I. The Problem

I represent a national non-profit consumer rights organization, as an amicus, in a federal appeal challenging a district court’s approval of a class-action settlement of claims under the federal Credit Repair Organization Act (CROA).1 My client maintains that the district court erred in finding that the settlement was “fair, reasonable, and adequate,” which is the standard for class-action settlement approval under the Federal Rules of Civil Procedure.2 In particular, we argue that the district court committed a reversible legal error when it deferred to the class-action lawyers’ recommendation to approve the settlement because, in those lawyers’ view, it was fair, reasonable, and adequate. We also argue that the district court erred when, in approving the settlement, it relied in part on its belief that the plaintiffs’ counsel, whose work the judge had observed for years, are really good lawyers.

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Compounding Reform: Reconsidering the Draft Safe Drug Compounding Act of 2007 in Light of the Ongoing Fungal Meningitis Outbreak

Colleen Nicholson*

2 U. Mich. J.L. Reform A76

Compounding is the act of combining, mixing or altering ingredients to create a drug tailored to the needs of an individual patient, such as a child who needs a less potent dose, an elderly patient who has trouble swallowing, or an individual with a severe allergy to a drug component. Compounding pharmacies, which engage in large-scale drug compounding, have come under the microscope recently because of the ongoing deadly outbreak of fungal meningitis that began in 2012. Fungal meningitis “occurs when the protective membranes covering the brain and spinal cord are infected with a fungus.”1 The recent outbreak was caused by steroid shots contaminated with so much fungus that in some cases the fungus particles were visible to the naked eye.2 A single compounding pharmacy in Framingham, Massachusetts, the New England Compounding Center, “shipped 17,676 vials of … potentially contaminated [steroid] solution to 75 clinics in 23 states.”3 As of March 4, 2013, the Centers for Disease Control and Prevention (CDC) had linked 720 cases of meningitis or other complications, including forty-eight deaths, in twenty states to the epidural steroid injections that all originated from the New England Compounding Center.4

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Old Habits Die Hard: Disengaging from the Bluebook

Mark Garibyan*

2 U. Mich. J.L. Reform A71

Incoming first-year law students dread many aspects of what lies ahead: the cold calls, the challenging course load, and the general stress that is associated with starting a new phase in one’s life. Most students, however, do not expect that the Bluebook1—the citation system used ubiquitously throughout the legal landscape—will inflict “more pain” on them “than any other publication in legal history.”2 This pain might be a shock to many who are accustomed to the simpler systems utilized in other academic fields.3 A citation itself is, after all, merely a reference; it is “neither scholarship nor analysis.”4 Preferably, a system of citations needs to be simple and functional so as to not distract the reader from paying attention to the author’s reasoning. TheBluebook’s “complexity and insularity” made it anathema to many lawyers and stirred up significant criticism.5This Comment will explore the current rationales for the Bluebook’s eminence, followed by a discussion of theBluebook’s many shortcomings. Finally, it will propose a pragmatic alternative to the Bluebook that will satisfy the need for a useful system of citation without any of the tangential headaches.

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Past Its Prime: Why the Clean Air Act is in Need of Modification

Levi Smith*

2 U. Mich. J.L. Reform A67

The Clean Air Act (CAA)1 is the primary federal statute regulating the emission of air pollutants. First enacted in 1970, the CAA requires, inter alia, the federal government to establish air quality goals2 and states to develop implementation plans to achieve those goals.3 The most stringent requirements of the CAA are imposed on “new” or “modified” sources of pollution, such as sulfur dioxide, nitrous oxides, and particulate matter.4 Sources that were operating when the CAA was enacted are mostly exempt from regulation under the Act.5 Because of the substantial costs associated with the CAA standards, there is an incentive for existing sources to stay in operation instead of modifying existing or opening new facilities. This subverts the goals of the CAA because the most inefficient and polluting sources stay in operation rather than being replaced with newer, cleaner plants and new pollution control technologies. This Comment argues for federal regulation of existing sources of pollution under the CAA and suggests ways by which the federal government could encourage investment in newer and cleaner industrial sources.

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Re-Thinking Health Insurance

Hans Biebl*

2 U. Mich. J.L. Reform A62

In May 2009, while promoting the legislation that would become the Patient Protection and Affordable Care Act (PPACA),1 President Obama said that rising health care costs threatened the balance sheets of both the federal government and private enterprise.2 He noted that any increase in health care spending consumes funds that “companies could be using to innovate and to grow, making it harder for them to compete around the world.”3 Despite the rancorous debate that surrounded this health care legislation and which culminated with the Supreme Court’s decision in National Federation of Independent Businesses,4 the PPACA was not a radical piece of legislation. It did not address the fundamental function that choosing health insurance plays in American society. Reform in health insurance must begin with treating health insurance more like fire insurance. In other words, health insurance should function more as a means to indemnify against catastrophic financial loss and less as a means to pay for routine medical care. By treating health insurance like other types of insurance that are carried for risk protection, the runaway medical bills that imperil American government and business can be constrained. This Comment first offers a survey of spending on health care in the United States. Next, it discusses the inefficiencies of Americans using health insurance to pay for routine medical expenses. Finally, this Comment proposes the elimination of government subsidies for employer-sponsored health insurance, which would create incentives for individuals to become healthier while also lowering their health care expenditures.

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Playing with Fire: Proceeding Cautiously with Reforms to the Michigan Fireworks Safety Act

Nicholas Pietropaolo*

2 U. Mich. J.L. Reform A57

On January 1, 2012, the Michigan Fireworks Safety Act went into effect.1 It marked a significant change in how the state of Michigan treats the sale and use of “consumer fireworks.”2 Effectively, the new statute authorizes the sale and use of Roman Candles, bottle rockets, aerials, and other fireworks3 that had previously been banned.4 Almost immediately, challenges and complaints were raised. On one side, eight fireworks vendors challenged the constitutionality of one of the law’s provisions that required such vendors to purchase insurance at an arguably unreasonable rate.5 The court dismissed that case, holding that it could not be said that the Act’s insurance requirement lacked a rational basis.6 On the other side were local municipalities that opposed the new law and immediately sought to limit its impact in their jurisdictions. For example, Warren, Michigan passed an ordinance that would prohibit the use of fireworks within 30 feet of a residential building.7 Though provisions of the law might need adjustment once their impact is seen, this is not something that should be done prematurely. This Comment advocates a careful, calculative approach to potential reforms of Michigan’s nascent fireworks law. Instead of changing the law, the legislature should hold off on any revisions until the law’s full impact can be seen.

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One More Good Reason for In-Car Videotaping of Traffic Stops: An Accurate Assessment of “Consent”

Robert L. White*

2 U. Mich. J.L. Reform A52

There are a number of reasons why legislative reform mandating the use of in-car cameras in police cruisers would benefit the criminal justice system in Illinois. In-car cameras provide evidence for cases involving traffic violations or intoxicated motorists.1 They produce instantly available training materials.2 They also assist victims of police misconduct,3 as well as officers defending themselves against misconduct claims.4 This Comment looks to add to this list of benefits the role in-car cameras can play in assessing the validity of consents to search that officers obtain during traffic stops.

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If Female, Skip to Question #23

James Santiago*

2 U. Mich. J.L. Reform A47

The requirement that only men register with the Selective Service System1 is in need of reform for many reasons. One reason that has largely been unexplored is the public’s disconnect with the military and the recent wars in Iraq and Afghanistan. Women are actively engaged in those wars in our all-volunteer force, but women are not required to register with the Selective Service. Failure to register can have tremendous legal consequences for men, such as ineligibility for student loans with an answer of “no” to question #22 on the Free Application for Federal Student Aid (FAFSA).2 There are many consequences of such a system—such as a disparity in treatment between similarly situated men and women—but another social consequence is the lack of a broad-based public interest when our nation goes to war.

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Energy Subsidies, Market Distortion, and a Free Market Alternative

Hans Biebl*

2 U. Mich. J.L. Reform A43

Gas and coal are cheap. They are cheap because the U.S. government subsidizes their production.1 The result is that the marketplace does not recognize the true cost of fossil fuels. Without the subsidies, Americans—for the first time in nearly a hundred years—would experience the cost of unsubsidized fossil fuels.2 In a newly competitive marketplace, renewable sources of energy would be in a better position to compete. Without gas and coal subsidies, clean energy producers, who have not been able to compete with the low price of fossil fuels, might be more willing to invest in “clean, renewable, and more energy efficient technologies.”3 This Comment first provides a brief history of U.S. energy policy over the last 100 years. Next, this Comment discusses how past free market reforms have failed to change the energy marketplace. Third, this Comment proposes that two provisions of the U.S. tax code that give preferential treatment to oil and gas producers be eliminated.

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Book Review: The Future of School Integration: Socioeconomic Diversity as an Education Reform Strategy, edited by Richard D. Kahlenberg (Century Foundation 2012), 397 pages

Eloise Pasachoff*

2 U. Mich. J.L. Reform A39

The last decade has seen a quiet but steady expansion of interest in using socioeconomic diversity in schools to improve educational outcomes.  Ten years ago, only a few school districts around the country used formal strategies to integrate their schools along class lines.1  Today, over eighty school districts around the United States, together educating around four million students, ensure that poor children are taught alongside middle-class and wealthier children through a variety of voluntary integration programs.2  The message ofThe Future of School Integration: Socioeconomic Diversity as an Education Reform Strategy, the important new book edited by Richard Kahlenberg, is simple: these strategies are more educationally effective than other reform strategies; they are more cost effective; and recognizing these facts has important implications for a number of pressing law-reform choices at the federal, state, and local levels.

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